Maahir Haque, MD

What are the challenges in proving medical malpractice?

Most malpractice cases are due to some kind of medical error that results in harm to the patient, or even death. Sounds simple enough but proving medical malpractice is difficult and can require a well-planned legal strategy with a medical expert opinion.

The first challenge is that medical malpractice cases always depend on having a recognized medical expert — or even a team several medical experts — that all document the treating physician provided harm and acted in a manner below the community standard. This can be difficult to prove beyond a reasonable doubt because both sides will line up their medical experts to provide different opinions.

The second challenge is that many times doctors are reluctant to get involved in a medical malpractice case as it may require them to testify against a fellow doctor.

The third challege involved with medical malpractice is that juries nationwide can be tough on medical malpractice plaintiffs. For example, doctors win the majority of medical malpractice cases that go to trial. Some theorize that a jury may believe that medicine is hard, sometimes an art more than science, that patients can present impossible cases to deal with, and that there can be disagreement on what was the best course of treatment. The reality is that not all patients have a good outcome and patients can themselves present issues like obesity and other complicating factors. Unless the doctor made an obvious mistake, like leaving an instrument inside the patient, juries often give the doctor benefit of the doubt.

Examples of medical errors

A medical error is a preventable adverse effect of care. This includes the wrong or incomplete diagnosis or treatment of a disease, injury, syndrome, behavior, infection, or other ailments.

Examples of Medical Errors can include:
• Misdiagnoses
• Delayed diagnosis
• Administration of the wrong drug
• Giving multiple drugs that interact negatively
• Surgery on incorrect site
• Failure to remove surgical instruments
• Failure to take the correct blood type into account
• Incorrect record-keeping

Causes of medical errors

• Inexperienced physicians or nurses
• New procedures
• Extremes of age
• Complex or urgent care
• Poor communication
• Improper documentation
• Illegible handwriting
• Inadequate nurse-to-patient ratios
• Similarly named medications

Misdiagnosis and Delayed Diagnosis

A large number of malpractice cases are from misdiagnosis or delayed diagnosis of a medical condition. When a physician makes a misdiagnosis it can lead to wrong treatment, delayed treatment, or no treatment at all which can result in making the condition worse, or even fatal for a patient.

However, a mistake in diagnosis by itself is usually not enough for a malpractice lawsuit. The law does not hold physicians responsible for all errors.

In the field of spine care, for example, failure of the spine surgeon to diagnose and quickly surgically treat spinal cord issues like cauda equina (loss of bowel or bladder) or weakness in a leg or foot, can relate to a medical error, if the patient were compliant with the physician’s orders.

Consequently in the field of spine surgery, it’s imperative to have an expert medical witness who himself sees hundreds of patients in practice, and performs more than 100 spine surgeries annually, as does Dr. Maahir Haque.

In order to have a sustainable malpractice lawsuit the patient must be able to prove the following:
• A doctor-patient relationship existed
• The doctor was negligent by not providing treatment professionally or in a competent way.
• The doctor's negligence caused an actual injury to the patient.

Physician Negligence

A misdiagnosis does not necessarily mean the physician was negligent. Expert physicians can make diagnostic errors even when using reasonable care. The key part is determining if the physician acted competently by evaluating what steps the doctor took to come to their initial diagnosis. Under these circumstances the patient must prove that a physician with a similar specialty, under similar conditions, would not have misdiagnosed the patient.

A patient can achieve this by proving one of the following:
• The doctor did not include the correct diagnosis on the differential diagnosis list, which is the systematic method used to identify a disease or condition by making a list of diagnoses in order of probability and ruling out diagnoses through evaluations and tests of the patient.
• A competent physician would have included the correct diagnosis under the same conditions.
• The doctor included the correct diagnosis on the differential diagnosis list, but failed to perform the proper evaluations or test in order to investigate the viability of the diagnosis.

Errors in diagnostic equipment or surgical implants

A physician can also misdiagnosis a condition because of inaccurate results from testing equipment such as laboratory test, x-rays and other types of test. This can happen if diagnostic equipment was faulty or human error occurred, such as mixing up or contaminating blood samples.

Under these circumstances, a physician may not be liable for medical malpractice but someone else could, like the technician that misread the results or mixed up the tests. However, in this case the patient would still need to prove that the error was a result of negligence.

The other possible issue can relate to surgical implants either not installed correctly by the surgeon, or that the implant did not function as intended. In either case, the patient may have been injured from the surgery.

Legal merits

Maahir Haque MD can also help an attorney or legal firm evaluate in advance the merits of a potential malpractice case by providing expert advice without testifying. In some cases, Maahir Haque MD is hired as a consulting expert first in order to provide medical opinions in advance. This allows the client to then make the determination if they want to convert the consulting expert into a testifying expert.